A Thought Experiment

As I mentioned on Monday, I read Normative Jurisprudence as a call for more serious legal discussions about the good in relationship and the good in sex. In the past 3 days, I’ve written about relationship (or at least marriage). Today, I’m going to talk about sex. I’ll start by saying that Robin West first became my hero when, in the 1980s, she, more than anyone else, wrote openly and honestly about many women’s relationship to sex. At that time, feminists were talking a great deal about the harms of non-consensual sex, but not about why women might actually want to have sex. Sex positivists, both male and female, emerged to extol the benefits of sex (or at least the harms of regulating it) in order to mostly kill the feminist attempt to regulate pornography. Not very many people argued, as Robin did, that we really did need to have it both ways. Sex could be good and sex – even consensual sex – could be bad. Today queer theorists and sex positivists talk
a great deal about sex, including, as Marc Spindelman reminded us yesterday, its incessantly irrational nature. For much of queer theory, the power of that irrationality and the raw “natural” power in sex renders sex a force and a good around which there should be no or minimal boundaries. Few people, save Robin, the followers of John Finnis and the ever-opinionated-if-not-completely-informed Richard Posner, talk about what sort of boundaries we might believe should be put, either as a matter of ethics or a matter of law, on a right to sexual expression.

It is not surprising, therefore, that when Justice Kennedy was left to describe what was wrong with anti-sodomy laws in Lawrence he could provide only a thin understanding of why sex needs protection: Sex is an expressive part of relationship
(“when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.”). As a fan of relationship (see all that marriage stuff), I am not as outraged by this language as many of the progressive critiques of it, though I also see no good reason for the law to bar fully consensual, non-dangerous non-relationship sex (which, if it was sexual at all, is apparently what the encounter in Lawrence v. Texas was, anyway.) There is something about the sex that needs to be protected apart from relationship, or at least I can think of no good reason to protect the sex only when it is in relationship.

But of course constitutional jurisprudence says that unless we have triggered some form of added scrutiny, legislatures do not need a good reason, they need only any reason. “Yuck” is a sufficient reason for regulation if there is no added scrutiny. Justice Kennedy suggested that the added scrutiny comes from the relational aspects of sex. If we want the right to be broader than that, we need a broader reason for added scrutiny.

Articulating that broader reason may be more difficult than we think. Here’s a thought experiment. If you asked a swath of the general American population who do you agree with more, John Finnis or Janet Halley, I bet more people would say Halley. Every poll and study confirms that Americans find nothing wrong with non-marital, nonprocreative sex and they would reject Finnis’ anachronistic views of sex out of hand. In many isntances involving sexual conduct, the public seems content to let people do what they want. But if you asked that same group whom they would like to control the Supreme Court tomorrow – and they had to choose Finnis or Halley – I bet more people would vote for Chief Justice Finnis. Here is why. Finnis would permit legislatures to make nonprocreative sex illegal and make birth control hard to come by, but he would not have the power to effect the change he wanted. He would concede that sex should happen in private, so people would be entitled to some sexual privacy. There would be enough popular disdain for very sex restrictive laws that even if they did pass, enforcement efforts would be haphazard. Certain areas would be unlivable for gay men and lesbians (thus, the gay vote would clearly go for Chief Justice Halley) and some innocents would be unfairly punished, but mostly the government would not be up to the regulative task that Finnis would argue it was entitled to pursue.

Put the queer theorists on the Court though and look what happens to sex. It is everywhere and it is protected. It is with all manner of partners, teacher and students, uncles and niece. It is presumed consensual; it is happening on the park bench at noon. Not everyone is doing it on the park bench, but anyone who wants to can. Not all students are sleeping with their teachers, but those who are not (or those who are no longer) have no grounds to complain. Many people are uncomfortable. People are concerned about naïve and/or vulnerable people experiencing sex that they do not want or come to regret. People feel threatened, though they are not sure why. There is renewed interest in Catharine MacKinnon’s claim that when sexuality goes public, women get hurt.

Whatever the true cause of the discomfort, people do not want to go to the park with their kids. Parents do not want to let their daughters out of their sight. People of all ages become a little desperate for some collective restriction on this activity that they know is deeply important to them, indeed they know it is deeply important to everyone. They know they need a better reason than “yuck,” but they also know they want some regulation. So they need a conversation about why and how
we want sex.

My guess that most of the American public would actually prefer Chief Justice Finnis may be completely wrong (it assumes, first of all, that people have a basic understnading of the relationshp between legislature and court – that may be way too optimistic). Maybe people are much more eager to embrace Janet Halley’s vision than a I think they are. But Robin, far more than Posner, has explained why for many people, often women, sex really is a tedious affair, having little to do with passion or captivating and blinding power. Perhaps, as Robin has gone to great pains to emphasize, consent is a sufficient legal restriction on sex, but even if that is true we might want other normative forces operating on sexual behavior.